Comment by Alexandra G. Sinha
Our planet is warming, and the effects of climate change are no longer merely impending. Eight years after the international community agreed to limit the global average temperature to a hopeful 1.5 degrees Celsius above pre-industrial levels, the world has experienced its hottest year in the last 150 years. The implications of even a 1.5-degree global average increase in temperature are dire. Climate scientists forecast a tumultuous parade of disasters including flooded coastal cities, frequent monster storms, raging wildfires, and the demise of natural wonders ranging from the Great Barrier Reef to the Antarctic Ice Sheets.
In response to climate scientists' and environmentalists' calls for action, many nations have focused on shifting their energy systems from carbon-fueled to carbon-zero. The Paris Agreement, a binding international treaty on climate change, requires nations to update their strategies for reducing greenhouse gas emissions to meet the 1.5 degree Celsius goal every five years. To reach its emission goals, the world has turned to renewable energy, adding 507 gigawatts of renewable energy in 2023, a fifty percent increase from the year prior. Thus, the “green transition” has undeniably arrived.
So why was Greta Thunberg, the environmental youth movement poster child, sitting outside the office of Europe's largest renewable energy producer in protest of Norwegian wind farms? The answer lies in a conflict between Norwegian Sámi reindeer herders, Norway, and a wind energy project. In 2010, the Norwegian government issued licenses to build windfarms on the Norwegian Fosen peninsula, an area crucial for the Norwegian Sámi siidas' reindeer winter grazing. The Sámi siidas argued that Article 27 of the International Covenant on Civil and Political Rights (ICCPR) prohibited Norway from denying them their right to practice and enjoy their culture, namely reindeer husbandry. The Norwegian Supreme Court agreed; it found that the windfarms would “ultimately eradicate the [siidas'] grazing resources,” an interference that constitutes a “serious threat” against Sámi cultural enjoyment. The court, however, failed to offer an equitable remedy, leaving the parties to work out a solution. As of now, the wind turbines remain standing.
The Fosen Vind case raised a broader question about navigating the conflicts between indigenous groups and green energy development, and ultimately between indigenous rights and the emerging right to a healthy environment. The Fosen Vind court established an opportunity for future courts to use the emerging right to a healthy environment as justification for restricting indigenous rights in the pursuit of environmental interests, like the green transition.
This Comment argues that using the right to a healthy environment to limit indigenous rights is contrary to the development of both rights under international human rights law. First, international courts have limited states' ability to restrict the indigenous right to culture because it protects the survival of indigenous cultures and livelihoods. Any court challenged with balancing the two rights must do so restrictively with the goal of protecting indigenous rights. Second, courts and international bodies should consider whether indigenous rights and the right to a healthy environment actually conflict before conducting a balancing analysis that may result in restricting indigenous rights. Indigenous people play an important role in the global effort to preserve biodiversity and to adapt to climate change. Additionally, the right to a healthy environment has been developed as interdependent with existing human rights.
The right to a healthy environment requires that states uphold their existing human rights obligations, and the right should therefore be limited so that states do not violate existing indigenous rights in its implementation. Part II provides an overview of the conflicts between the green energy transition and indigenous rights that culminated in the Fosen Vind case. Part III chronicles the protection of indigenous rights by international courts and the development of the right to a healthy environment. Part IV addresses whether a conflict between the indigenous rights and the right to a healthy environment exists, and how to reconcile such conflict. Part V briefly concludes.
About the Author
Alexandra G. Sinha. J.D. Candidate 2025, Tulane University Law School; B.A. 2019, The University of the South; Sewanee.
Citation
99 Tul. L. Rev. 427